Robert Gibbs

White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.

People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:

As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.

Of these nominees:

21 (55%) have been nominated to fill emergency slots.

29(76%) are women or people of color.

29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.

There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)

Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:

Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.

Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.

U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.

And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.

President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.

Judge Virginia Phillips of California found last month that the policy violates servicemembers’ First Amendment speech rights and Fifth Amendment right to due process. The injunction she issued today takes effect immediately. The Obama Administration can still choose to appeal her decision.

Christian Berle, the Deputy Director of the Log Cabin Republicans, reacted with this statement:

"These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution," Berle said. "It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."

Federal judges in two separate cases this year have found Don’t Ask Don’t Tell dismissals to be unconstitutional. I summed up some other voices of authority weighing in on the DADT debate in this post. The policy is a disgrace, and it’s far past time for it to be a piece of our history.

Update: The Advocate talked with White House Press Secretary Robert Gibbs about the possibility of appealing the ruling:

At a Tuesday briefing soon after Phillips's issued her judgment, White House press secretary Robert Gibbs told The Advocate he did not know whether the Administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. "Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case and the president will continue to work as hard he can to change the law that he believes is fundamentally unfair," Gibbs said.

This afternoon, we have another illustration that when the pull of profits goes up against protecting public safety, the personal leanings of our federal judges really do matter. The Associated Press reports:

A federal judge struck down the Obama administration's six-month ban on deepwater oil drilling in the Gulf of Mexico on Tuesday, saying the government rashly concluded that because one rig failed, the others are in immediate danger, too.

The White House promised an immediate appeal. The Interior Department had halted approval of any new permits for deepwater drilling and suspended drilling of 33 exploratory wells in the Gulf.

Press Secretary Robert Gibbs said President Barack Obama believes strongly that drilling at such depths does not make sense and puts the safety of workers "at a danger that the president does not believe we can afford."

Judge Martin Feldman, a Reagan appointee, said, “What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."

To be clear, in reaction to the worst oil spill ever in US waters—one that was caused by reckless decisions made by a company that had to answer to very little government regulation—the president is halting similar drilling projects until investigators can ensure that they are safe. That doesn’t exactly seem overly rash.

Yesterday, Senate Judiciary Committee Chairman Patrick Leahy said that he’d be sure that Elena Kagan is asked a lot about the role of the courts in cases involving the accountability of oil companies in her upcoming Supreme Court confirmation hearings. Today’s decision is a reminder of why that’s so important.